Impeaching a president is a dangerous game. It short-circuits the electoral process. It provokes in-kind retaliation. It alienates a president’s constituency. And it can spectacularly backfire.
The first impeachment of President Donald Trump, for abuse of power and obstruction of justice, is a case in point. Not only did Trump emerge more politically powerful than before; he also learned that he was free to subvert congressional inquiries and was empowered to leverage foreign governments for personal political purpose — all without fear of sanction. His acquittal in the long-term could encourage a future president to engage in similar actions.
The current impeachment of Trump for incitement of insurrection appears to be headed down the same path. He will not be convicted. He will claim that he was exonerated. His followers will unite behind him, pronounce him blameless, applaud his fortitude and proclaim his triumph over purportedly scurrilous adversaries. He and his allies will become more politically empowered. The country will become even more divided.
There is therefore a significant question as to whether the Senate should proceed to a trial that is foreordained to acquit. Some would argue that the risks of a failed impeachment are worth taking to preserve the principle that no person is above the rule of law. Yet whether pursuing another impeachment destined for failure would actually accomplish this purpose is far from clear. An acquittal might send a stronger message of impunity than would no prosecution at all; a failed impeachment might encourage a future president to further test the limits of presidential power. And while a conviction could prevent Trump from running again, an acquittal would likely only increase his electoral chances while simultaneously boosting the prospects of his allies. There is therefore little to be gained and much to lose: A Senate trial that will end only in futility is not a good idea.
At the same time, the immense importance and wisdom in the House’s decision to initially bring the impeachment should be recognized. Initiating the impeachment accomplished a critical and crucial function. It constrained an erratic and volatile president during his last few days in office — when he still held the levers of power. Given the uncertainty and precariousness surrounding that moment, the significance of this achievement cannot be overstated.
Consider how the threat of impeachment reportedly influenced Trump’s exercise of the pardon power. He did not pardon the Capitol rioters, he did not pardon others accused of inciting insurrection, he did not pardon his family, and he did not pardon himself. As a result, the path remains open for the criminal liability of Trump’s allies, and perhaps of Trump himself, to be decided openly in courts of law, rather than by presidential fiat.
Even more significantly, the threat of impeachment might have well spared the country from more violence and unrest. Faced with impeachment, Trump toned down his behavior dramatically in his last days in office and, in so doing, toned down the reactions of his supporters. He did not stage rallies (other than his departure ceremony at Joint Base Andrews). He no longer pressed his followers to reject the results of the election. He stopped attacking congressional Republicans who accepted the election results. He did not encourage his followers to protest on Inauguration Day — although many such protests had already been planned. He did not take other actions to disrupt the transition, although many feared he would. And though his ban from Twitter certainly played some role in his muted presence, he was never far away from the White House briefing room, where he could easily garner national and international media attention at a moment’s notice. But for the shadow of impeachment, there was nothing stopping him from continuing to rile up his base.
As a result, Inauguration Day, and the days leading up to it, passed without serious incident. The violence that occurred on Jan. 6 was not replicated on Jan. 20, nor on any of the days in between. The transfer of power to a new administration eventually occurred peacefully.
The purpose of impeachment is not only to punish bad acts. It is also to deter future misconduct. Those in the House of Representatives who supported impeaching Trump for incitement of insurrection should take heart that their effort accomplished exactly that. There is no need to bring the matter to trial. The impeachment has already succeeded.
William P. Marshall is a law professor at the University of North Carolina.